Before MOORE, FRIENDLY and SMITH, Circuit Judges.
FRIENDLY, C.J.: National Marine Engineers' Beneficial Association, AFL-CIO (MEBA), International Organization of Masters, Mates and Pilots (MMP) and Seafarers International Union of North America (SIU) appeal from an order of Chief Judge Ryan, entered in the District Court for the Southern District of New York on July 10, 1961, pursuant to § 208 of the Labor Management Relations Act of 1947, 61 Stat. 155, 29 U.S.C. § 178 (sometimes hereafter the Taft-Hartley Act or the Act), which temporarily enjoined continuation of a large scale strike of the United States merchant marine. Other unions which were defendants below and were named in the injunction have not appealed. It is not disputed that all the preliminary steps to such an injunction required by §§ 206-208 of the Act, 29 U.S.C. §§ 176-178 - Presidential appointment of a board of inquiry, the making and filing of a report by the board, and direction by the President to the Attorney General to start a suit - were duly taken. The District Court found that the strike affected a substantial part of an industry engaged in transportation among the several states and with foreign nations and that, if permitted to continue, it would imperil the national health and safety. Although the parties differ slightly as to the number of vessels in the United States merchant fleet and the proportion that would have been immobilized by the strike at the time of the injunction but for a temporary restraining order issued by the District Court on July 3,*fn1 we need not discuss this since the lowest percentage claimed, 451/2%,*fn2 is plainly "a substantial part,"*fn3 and appellants do not here contend to the contrary.
However, the parties are in sharp conflict whether the District Court was warranted in finding that continuance of the strike "will imperil the national health or safety," a finding which § 208(a)(ii) makes indispensable to the issuance of the injunction. Here, as in United Steelworkers of America v. United States, 361 U.S. 39 (1959), the Government urges a broadly inclusive interpretation of these words of the statute whereas the appellant unions claim that "health" is limited to the physical health of the populace as distinguished from the general well-being of the nation and its economy, and that "safety" is limited to the national defense and even that viewed on a somewhat restricted basis. The question of what these terms embody is not without its difficulties, and Congressional clarification of so important a matter would surely be helpful. Like the Supreme Court in the Steelworkers case, we find it unnecessary to resolve the issue. For the record supports the granting of the injunction even on the narrower interpretation of the statutory language for which the unions contend.*fn4
The District Court found that continuation of the strike "would have an adverse effect upon the maintenance in this country of an adequate supply of petroleum products, which is essential to transportation, both military and civilian, and for the operation of industrial plants and electric utilities and for heating." There is no need to belabor the point that a material depletion of petroleum supply would imperil the national health and safety even on the most restricted interpretation of those terms. Without going into burdensome detail, it is evident that a supply of petroleum products adequate for the production and transportation of foods and drugs, for heating, for the making of electrical energy, and for many other purposes, is essential to the physical health of the people; an adequate supply is equally required for the training and readiness of the Air Force the production and transportation of goods essential to national defense, and the operations of the Navy, the merchant marine, and air and land transport in the event of military emergency. Even the dissent in the Steelworkers case considered a coal strike within the purpose of Congress in enacting § 208, 361 U.S. 65; in today's economy the effect of a shortage of petroleum, the source of 45% of the energy consumed in this country as the record shows, would be at least as serious. The question, therefore, is whether the District Court was warranted in concluding that the maritime strike was threatening petroleum supply.
It plainly was. An affidavit of the Secretary of the Interior stated that the East Coast of the United States uses more than 3,500,000 barrels of oil daily,*fn5 that more than half this supply comes by tank vessel from United States Gulf Coast ports; and that legal requirements demand that this movement be in United States registered vessels. Other affidavits stated that more than half the American flag tankers active in the Gulf Coast-East Coast service were strikebound until the District Court issued its temporary restraining order; Judge Ryan was justified in accepting this estimate. The Secretary further averred there were no other means of transportation which could promptly replace the tankers; that, accordingly, spot shortages of petroleum products, especially gasoline, could be expected shortly; that these would rapidly worsen; that aircraft fuel would soon be in short supply; and that the necessary summer build-up of stocks of heating oils would be interfered with. Other Government officers attested the prospect of shortages of petroleum products affecting industrial operations necessary to the national defense. Defendants adduced no evidence requiring rejection of these statements.
We could rest here, and on the convincing evidence supporting the finding that continuation of the strike "would have a critical impact upon Hawaii, which occupies a key position in our defense structure, because Hawaii's supply of essential foods (taking into account the time required for transportation from the West Coast to Hawaii) would be exhausted * * *"*fn6 but for appellants' contention that, assuming so much to have been established, the injunction should have been limited to strikebound tankers serving the East Coast and ships in the Hawaii trade. True, this contention reminds of that with respect to "a selective reopening of some of the steel mills * * * to fulfill specific defense needs," which the Supreme Court rejected in the Steelworkers case, 361 U.S. 39, 43, see also 49-54. However, the economics of merchant shipping may not be parallel with those of steel as regards the feasibility of segregating particular operations; and we prefer to rest affirmance upon another finding to which this contention is inapplicable.
This finding is that "Since the American merchant marine is intended, pursuant to the Merchant Marine Act, 1936 (46 U.S.C. 1101 et seq .), to be available as a naval and military auxiliary in time of war or national emergency, the strike, by rendering the merchant marine inoperative, would constitute a serious risk to the national health and safety"; we endorse this insofar as it refers to the national safety, which, in view of the disjunctive wording of § 208(a)(ii), is all that is required.
The Merchant Marine Act of 1936 was enacted, after comprehensive consideration, to replace predecessor statutes, Act of June 5, 1920, 41 Stat. 988; Act of May 22, 1928, 45 Stat. 689, themselves designed to prevent recurrence of the situation in World War I in which the United States had found itself almost without a merchant marine at a time when foreign nations, on whose ships we had become largely dependent, withdrew these for their own needs. The very first sentence of the Merchant Marine Act declares, 46 U.S.C. § 1101, that "It is necessary for the national defense * * * that the United States shall have a merchant marine (a) sufficient to carry its domestic water-borne commerce and a substantial portion of the water-borne export and import foreign commerce of the United States and to provide shipping service on all routes essential for maintaining the flow of such domestic and foreign water-borne commerce at all times," and "(b) capable of serving as a naval and military auxiliary in time of war or national emergency * * *" The Secretary of Commerce is directed "to study, perfect, and adopt a long-range program for replacements and additions to the American merchant marine" in order to achieve various objectives, one of which is that "the vessels in such fleet are to be so designed as to be readily and quickly convertible into transport and supply vessels in a time of national emergency," 46 U.S.C. § 1120. He is instructed also to maintain a Merchant Marine Academy, cadets appointed to which "may be appointed by the Secretary of the Navy as Reserve midshipmen in the United States Navy and may be commissioned as Reserve ensigns in the United States Navy upon graduation from the Academy," 46 U.S.C. § 1126(b)(3). In the case of any application for a construction subsidy, the Federal Maritime Board must submit the plans and specifications to the Navy Department for suggestions as to changes "necessary or proper in order that such vessel shall be suitable for economical and speedy conversion into a naval or military auxiliary, or otherwise suitable for the use of the United States Government in time of war or national emergency," 46 U.S.C. § 1151(b); "any features incorporated in the vessel for national-defense uses" are to be paid for by the Board in addition to the construction-differential subsidy, 46 U.S.C. § 1152(b). An operating-differential subsidy may be paid only on vessels "which are to be used in an essential service in the foreign commerce of the United States," 46 U.S.C. § 1171(a); in determining what services are essential, the Secretary of Commerce is to consider "the intangible benefit the maintenance of any such line may afford to the foreign commerce of the United States and to the national defense," 46 U.S.C. § 1121(a).
Even this bare summary of the statute would seem enough to show that when Congress in 1947 authorized an injunction against a strike imperiling the national safety, one thing it would have had in mind was a strike immobilizing nearly half of the United States merchant marine, which, in considerable part, had been created and was being continued at large public expense, and was designed by Congress to maintain the essential flow of commerce "at all times" and to serve "as a naval and military auxiliary in time of war or national emergency." It is no answer that the maritime unions here have arranged for the movement of ships carrying military supplies now required by our existing forces abroad. What is vital is not merely the carriage of military supplies needed under current conditions but the instant availability of merchant ships - both freight and passenger - for the ballooning demands that war or national emergency would immediately produce. The need is for a merchant fleet in being - not one largely laid up, in ports vulnerable to enemy attack, and with trained crews and shore-based personnel dispersed beyond the possibility of immediate recall.*fn7 One must have a short memory, indeed, to forget the emergency demands for merchant shipping in World War II both before*fn8 and after*fn9 Pearl Harbor, or, more recently, in the Korean crisis,*fn10 in the course of which President Truman made a declaration of national emergency, 64 Stat. A454, 50 U.S.C. App., p. 8485, which is still in effect. Developments of the last decade have accentuated the need for mobility and speed; and no one can predict when that need will arise. It is significant that, in the month since the injunction here was issued, President Kennedy in his address of July 25, 1961, relating to the Berlin emergency, stressed "expansion of our air and sea lift" so as to provide a capability "of moving our forces quickly and in large numbers to any part of the world"; and that many ships and planes once headed for retirement are to be retained or reactivated.*fn11 It would be peculiarly improper for a court to reject the conclusion of the President that a strike which was immobilizing a substantial part of the country's civilian maritime transport at such a time imperilled the national safety, see 361 U.S. 48.It does not assist appellants that, as they urge, the program of developing a United States merchant marine may not have been so effective as was hoped; that is no reason for the Government's having to dispense with the fleet that has been created or to permit a long strike that might further impair it.
MEBA and MMP contend that, however the case may be in general, an injunction may not be issued against them because their members are supervisors, as defined in § 2(11) of the National Labor Relations Act, as amended, 29 U.S.C.§ 152(11). Recognizing that their omission from the injunction would largely deprive it of practical effect, they nevertheless insist the plain words of the statute require this. Their argument is that what § 208 of the Labor Management Relations Act of 1947 permits to be enjoined, by way of exception to the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, is a "strike or lock-out" of the sort described in that section and in § 206; that § 501(2) of the Labor Management Relations Act, 29 U.S.C. § 142(2), preceded by the words "when used in this Act . . . ." says that
"(2) The term 'strike' includes any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted slow-down or other concerted interruption of operation by employees";
that § 501(3) says that "employee" has "the same meaning as when used in the National Labor Relations Act as amended by this Act"; and that § 2(3) of the National Labor Relations Act, as so amended, 29 U.S.C. § 152(3), says "The term 'employee' * * * shall not include * * * any individual employed as a supervisor." Hence, MEBA and MMP contend, a concerted cessation of work induced by unions representing only supervisors, as they claim to be, although a strike in ordinary speech, is not a "strike" within § 208.
We have had previous occasion to consider the status of MEBA and MMP under Federal labor legislation. In A. H. Bull Steamship Co. v. National Marine Engineers' Beneficial Assn ., 250 F.2d 332 (2 Cir. 1957), these unions contended that because all the members there concerned were allegedly "supervisors," the unions were not "labor organizations" subjected to suit in the Federal courts by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185; although we indicated some belief that the contention might have merit, the point was not determined, our decision proceeding on the basis that in any event, as had just been held in A.H. Bull Steamship Co. v. Seafarers' International Union, 250 F.2d 326 (2 Cir. 1957), cert. denied, 355 U.S. 932 (1958), an anti-strike injunction was prohibited by § 4 of the Norris-LaGuardia Act, 29 U.S.C. § 104, - § 301 of the Taft-Hartley Act not containing an exclusion of Norris-LaGuardia similar to that in § 208 and other sections of the Act, such as § 10(h) and § 302(e), 29 U.S.C. § 160(h) and § 186(e). In National Marine Engineers Beneficial Assn. v. N.L.R.B ., 274 F.2d 167 (2 Cir. 1960), though we accepted the proposition that a union comprised wholly of supervisors would not be a "labor organization" within § 8(b) of the National Labor Relations Act, 29 U.S.C. § 158(b), we held that, on the facts there presented, the Board was justified in finding that non-supervisory employees participated in these two unions and hence in holding them within that section. Here the District Court made no finding whether appellants' factual claims were sustained. Assuming, for the purposes of this case only, that the facts are as the unions claim, we reject their contention as to the law.
Even if our approach to interpretation of the statute had to be as literal as appellants urge, the result for which they contend would not be a necessary one. Section 501 (2) does not say that the term "strike" is limited to what is there described; it says the term "includes" the things there mentioned. In this respect it contrasts with §§ 501(1) and (3), both of which use the word "mean." Hence it is decidedly arguable that, even on appellants' tack, "strike" as used in ...